Opinion
966 KA 13-00989
09-28-2018
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DENNIS ESTRUCH, DEFENDANT-APPELLANT.
SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT:
SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), rendered January 17, 2013. The judgment convicted defendant, upon a jury verdict, of reckless endangerment in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of reckless endangerment in the first degree (Penal Law § 120.25). Contrary to defendant's contention, he was not denied his right to counsel by County Court's refusal to grant his request for new counsel inasmuch as defendant did not make a "seemingly serious request[]" for new counsel (People v Sides, 75 NY2d 822, 824 [1990]).
We reject defendant's contention that he was denied his right to be present at a material stage of trial (see generally People v Roman, 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]). The conversations between the court and defense counsel regarding defendant's competency did not require defendant's presence (see People v Kimes, 37 AD3d 1, 30-31 [1st Dept 2006], lv denied 8 NY3d 881 [2007], reconsideration denied 9 NY3d 846 [2007]; People v Horan, 290 AD2d 880, 884 [3d Dept 2002], lv denied 98 NY2d 638 [2002]). In any event, those conversations were repeated on the record when defendant was present, thus obviating any possible error (see People v Purcelle, 107 AD3d 1050, 1051 [3d Dept 2013]; People v Forte, 243 AD2d 578, 578 [2d Dept 1997], lv denied 91 NY2d 891 [1998]).
Finally, the court did not err in failing to sua sponte order a competency examination (see CPL 730.30 [1]; People v Bryant, 117 AD3d 1591, 1591 [4th Dept 2014], lv denied 23 NY3d 1034 [2014]; see generally People v Tortorici, 92 NY2d 757, 765 [1999], cert denied 528 US 834 [1999]). The record supports the court's determination that "[d]efendant's remarks . . . were suggestive of a[n] obstructionist frame of mind, not an incompetent one" (People v Johnson, 145 AD3d 1109, 1110 [3d Dept 2016], lv denied 29 NY3d 949 [2017]).
Entered: September 28, 2018
Mark W. Bennett
Clerk of the Court